Excerpt: - - one of the principal grounds for discharge was that the complainant failed to produce chajju and ganga bux. at this, stage, it was only necessary for the magistrate to be satisfied that some offence was prima facie made put. however, even if the magistrate was not satisfied with the evidence already recorded, he could find it put from the record that the evidence of the two witnesses chajju and, ganga bux was essential to the just decision of the case......forcibly seized from the possession of the complainant's son chajju on the 14th may, 1949.2. the learned magistrate took proceedings under section 202 of the code of criminal procedure in which chajju and ganga bux were examined. the accused was summoned under section 427 of the penal code. in the presence of the accused, the statements of ramjiwan complainant, sunderlal, the seller of the bullocks, govind narain his son and raghunath and panchya and bhonrilal were recorded. raghunath and panchya deposed that it was in their presence that the bullocks were seized by the accused from the possession of chajju and ganga bux. bhonrilal deposed that the bullocks were sold by sunderlal to ramjiwan and that the witness scribed khata ex. p. 1 relating to the entry of the sale of bullocks......

Judgment:ORDER

Sharma, J.

1. This is an application by Ram Jiwan complainant, to revise the order of the learned Extra Magistrate, Jaipur District discharging the accused opposite party. The complaint was under Section 382 of the Penal Code and alleged that a pair of bullocks which had been purchased by the complainant from Sunder Lal had been forcibly seized from the possession of the complainant's son Chajju on the 14th May, 1949.

2. The learned Magistrate took proceedings under Section 202 of the Code of Criminal Procedure in which Chajju and Ganga Bux were examined. The accused was summoned under Section 427 of the Penal Code. In the presence of the accused, the statements of Ramjiwan complainant, Sunderlal, the seller of the bullocks, Govind Narain his son and Raghunath and Panchya and Bhonrilal were recorded. Raghunath and Panchya deposed that it was in their presence that the bullocks were seized by the accused from the possession of Chajju and Ganga Bux. Bhonrilal deposed that the bullocks were sold by Sunderlal to Ramjiwan and that the witness scribed Khata Ex. P. 1 relating to the entry of the sale of bullocks. Govind Narain also deposed about the sale to the complainant.

3. The learned Magistrate after examining the accused held that no offence was made out against the accused. One of the principal grounds for discharge was that the complainant failed to produce Chajju and Ganga Bux. The complainant went in revision to the Court of Sessions and the learned Additional Sessions Judge, Jaipur agreeing with the trial Court, dismissed the revision.

4. The complainant has come in revision to the Court.

5. I have heard the learned counsel for both the parties. It has been argued by the learned Counsel for the applicant that the evidence was, prima facie, sufficient for a charge at least under Section 379 of the Penal Code and the learned Magistrate was wrong in discharging the accused. It was also argued that under Section 252 (2) of the Code of Criminal Procedure it was the duty of the Magistrate to ascertain from the complainant or otherwise the names of any persons, likely to be acquainted with the facts of the case and to be able togive evidence for the prosecution and after such ascertainment, it was his duty to summon those witnesses whom he thought necessary. The learned Magistrate discharged the accused principally on the ground that Chajju and Ganga Bux were important witnesses, but they were not examined by the prosecution. If the learned Magistrate thought so, it was his duty to examine these witnesses under Section 540 of the Code of Criminal Procedure.

6. On behalf of the opposite party, it has been argued that the complainant closed his evidence as is disclosed, by a note of the Magistrate and the Magistrate was not bound to call any evidence which had not been produced by the prosecution,

7. I have considered the arguments of both the learned Counsel. At the stage at which the accused were discharged, it was not necessary for the Magistrate to examine the prosecution evidence with a view to finding out if there could be a reasonable doubt about the guilt of the accused. This should be done at the stage of the final judgment. At this, stage, it was only necessary for the Magistrate to be satisfied that some offence was prima facie made put. According to the prosecution, the case was prima facie made out by the evidence of the two eye-witnesses, Panchya and Raghunath, coupled with the evidence of Ramjiwan, Sunderlal, Govind Narain and Bhonrilal. On a perusal of the statements, I find, that the contention of the learned Counsel for the applicant is not altogether without force. However, even if the Magistrate was not satisfied with the evidence already recorded, he could find it put from the record that the evidence of the two witnesses Chajju and, Ganga Bux was essential to the just decision of the case. In fact, the learned Magistrate has found that their evidence was very important, in criminal cases, the Court has also got to perform some duty and that is why under Section 252, a provision has been made that the Magist., after the complainant has been heard and the evidence produced by him recorded, shall ascertain from the complainant or otherwise the names of persons likely to be acquainted with the facts of the case and able to give evidence for the prosecution and shall summon to give evidence such of them as he thinks necessary under Section 540, it has been, made obligatory upon the Court to summon and examine or recall and re-examine any person as a witness whose evidence appears to it essential to the just decision of the case. Having itself found that the evidence of the two witnesses Chajiu and Gangabux was very material, the Court was wrong in discharging the accused without examining these two witnesses, under Section 540. The order of discharge, under the circumstances, cannot be maintained.

8. The application is allowed, the order of discharge is set aside and the case is sent to the District Magistrate Jaipur to make further enquiryeither himself or to send the case to some otherMagistrate subordinate to him excepting Mr. Gangalahri Extra Magistrate who might be competentto hear it.